Johanna Jainchill
Johanna Jainchill

The news that the CDC's restrictions on cruising from Florida could be invalidated by a Florida court must have come as a huge surprise to the many legal experts who believed that had such a ruling was very unlikely.

But once again, it shows us that the one thing we can expect during the Covid-19 pandemic is the unexpected.

The suit was brought by Florida in April claiming CDC overreach in its continuing block on cruise operations. At the time, Florida governor Ron DeSantis said that "no federal law authorizes the CDC to indefinitely impose a nationwide shutdown of an entire industry." ASTA supported Florida, and later Texas and Alaska joined the suit.  

In a potential victory for Florida, a judge granted the state a preliminary injunction from the CDC's cruising restrictions by making them optional instead of mandatory, beginning July 18. It doesn't mean that as of that date the industry will simply be free to operate as it did prepandemic: District Judge Steven Merryday also ruled that the CDC has until July 2 to propose a more narrow injunction supported by "current scientific evidence."

As unexpected as it may seem, Merryday's reasoning is very consistent with what the cruise industry has been saying for months.

Merryday said the CDC's restrictions do not consider the current prevalence of vaccines, something the industry has said many times. The CDC's conditional sailing order was written in October and did not even mention until April that vaccines had been approved.

"In fact, CDC's conditional sailing order relies on stale data obtained to justify the no-sail orders when the danger posed by Covid-19 was qualitatively and quantitatively different from today," Merryday wrote in his ruling.

Also echoing an argument long made by industry, the judge said the CDC should use "the same tools  when addressing the practices in other similarly situated industries, such as airlines, railroads, hotels, casinos, sports venues, buses, subways and others."

CLIA said in a statement about the ruling that cruising is "the only industry prohibited from operating in the United States for the last 15 months" and "needs to be treated similar to other transportation, hospitality and tourism sectors," something it's been shouting from the rooftops for months.

Merryday also said that cruise ships have been sailing safely in other parts of the world with protocols in place to minimize the spread of Covid. He cited the more than 400,000 people that have cruised since July 2020 "without debilitating infections of Covid-19." 

CLIA's statement said that the number is closer to 600,000, and it said that those sailings have had "a far lower incidence rate than virtually any other setting, a clear indication that the industry's protocols are working as intended." Many of CLIA's cruise line members have said the same; Royal Caribbean Group CEO Richard Fain said in March that of the more than 100,000 guests on over 150 cruises that company had operated during the pandemic, only 10 people tested positive for Covid-19.

DeSantis said in a statement following Merryday's ruling that "the CDC has been wrong all along, and they knew it," and called the ruling a victory "for Florida families, for the cruise industry and for every state that wants to preserve its rights in the face of unprecedented federal overreach."

Legal experts had said the suit had no chance: A law professor that told the Miami Herald article that the federal government has the right to regulate ports of entry and international commerce and that "under no circumstance" could he see a judge striking down a regulation that applies to cruise ships and cruise passenger safety; another said, "DeSantis doesn't care that it's going to be laughed out of court."

But whether or not you agree with Merryday's decision, his ruling has exposed some serious shortcomings in the CDC's conditional sailing order. Given the agency's track record during the pandemic -- the New York Times this week said that from its earliest days, the CDC has been plagued by what appeared to be "pathological clumsiness" -- it was perhaps time someone took a hard look at the order.  

Another against-the-odds victory

The ruling is the second against-the-odds victory for the cruise industry this year; the other is the waiver of the Passenger Vessel Services Act in Alaska, which will allow cruise ships to sail this summer despite a Canadian cruise ban in effect through next February.

When writing about the chances of a PVSA exemption, industry stakeholders and legal experts alike told me chances were slim to none: that a PVSA waiver had never been granted to the cruise industry because the law stipulates that any waiver has to be in the interest of national defense and can't be solely for economic reasons.

Congress not only passed a bill to give cruise lines a PVSA exemption in Alaska but did it unanimously.

Rod McLeod, a former executive Royal Caribbean, Carnival Corp. and Norwegian Cruise Line, told me in February, "If there was any time in the history of the PVSA that an exception should be granted, it is now. It will protect jobs in Seattle, clearly in Alaska -- all American jobs. A lot of people are going to be hurt by this."

He wasn't confident it would happen, and like many, he was pleasantly surprised when it did. Perhaps people in power are coming around to the idea that this is a one in a 100-year pandemic: If there was ever any time in history to make exceptions, it is now.


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